The International Criminal Court and African 'Victimhood'

Article excerpt

IT would be commonplace, to say the least, to call recent international efforts to rein in authors of some of the worst crimes known to man as the inklings of some 'brave new world". So I won't. I promise. But then again - shall we say - our recent efforts to subject characters the likes of Milosevic and Karadzic, Bagosora, Bemba, Taylor and al-Bashir, if not Tojo. Goring, 'Comrade Duch' and that 'murderers' row' we call the Khmer Rouge, to some evolving consensus of rights and justice is something that would shock the equilibrium of Huxley and Orwell. So even if one can be forgiven for calling history's first germinations of an effective system of global justice as 'brave', if not 'new', we can certainly see ours as a qualified Utopia of sorts.

I say 'qualified' here because the challenge posed by 'victims' or 'survivors of atrocity' soberly resides in any calculus of international justice. And yet how we are to bring justice to victims and their families, on the ground, in the remotest regions of the developing world, is a concern that will command the fullest attention of the international community through this century. With this in mind, I would like to focus on the particular challenge of realizing justice in Africa for victims of international crime vis-a-vis the increasing orbit of intervention by the International Criminal Court (ICC), promise of the African Court and African Commission on Human and Peoples' Rights, and winding down processes of the international tribunals/ special courts for Rwanda and Sierra Leone, with a view toward suggesting avenues of research, and reflection, for what are in all estimations the world's most pressing crises.

In recent years the international community has made Utopian strides in finding the political will to assert uniform standards of justice against perpetrators of the worst crimes known to humanity: 'war crimes', 'crimes against humanity' and 'acts of genocide'. Yet despite developments in jurisprudence that have far exceeded expectations, the challenge posed by victims in this process remains an open question, especially in Sub-Saharan Africa where the ICC is almost exclusively active. One of the most pressing concerns of our time remains: how do we bring justice directly to victims of international crimes in conflict and post-conflict societies, specifically in the situations before the ICC in Sudan. Uganda. Democratic Republic of Congo (DRC) and Central African Republic (CAR)? What are the avenues for collaboration, jurisprudentially and institutionally, with national and international courts? How can the interests of victims be viably represented before a given chamber? And how can the international community at large viably protect victims and their families against reprisals, administer reparations, monitor against corruption and ensure those greatest in need are served?

These concerns figure in the largely overlapping mandates of the ICC. the African Court and Commission, and the tribunals of Rwanda and Sierra Leone, respecting rights guaranteeing the sanctity of the person in its individual and corporate forms. But most distinctively they figure in the ICC's groundbreaking mandate to grant victims the opportunity to serve as 'participants' in proceedings. As participants they may present their interests beyond giving testimony as witnesses, enjoy representatives of their own choosing, and be awarded reparations upon conviction. But what this means and how this is to be implemented remains contentious and formidable, as seen in the particular burdens of reaching victims and fairly representing claims for atrocities committed in the CAR and DRC. Survivors of rape, for one, which is de rigueur in the course of war in these regions, are doubly victimized when stigmatized by their tribes and rejected by their husbands; whilst winning the trust of survivors is a continual difficulty. Ninety-three former child soldiers participated in the ICC's trial against Thomas Lubanga Dyilo for their kidnapping, use as human shields and forced infliction of countless atrocities, only for survivors to feel 're-victimized' and under renewed threat when charges were first dismissed on a ruling on potentially exculpatory material. …